Woods v Collins - [2019] SASCFC 146

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
WOODS v COLLINS
[2019] SASCFC 146
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Parker)
22 November 2019
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE - APPORTIONMENT OF DAMAGES
Appeal against a decision of a Judge of the District Court, by the plaintiff, that the defendant’s liability for negligence is assessed at 70/30 in the defendant’s favour.
The plaintiff was injured in a motor vehicle collision at a bend in a dirt track in New South Wales. The plaintiff was driving uphill and the defendant was driving downhill on the track. At the time of the collision, the defendant’s vehicle was stationary but straddling the up and down tracks. The plaintiff was unable to brake in time to avoid the collision.
The Judge did not include in the damages awarded a component for attendant care services, pursuant to s 141B of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act), provided to the plaintiff by her husband after 24 February 2013.
Held per Kourakis CJ (Kelly and Parker JJ agreeing), allowing the appeal in part:
1. The finding on liability by the Judge be set aside and instead apportion responsibility for the collision equally.
2. The Judge erred in failing to award any damages for future economic loss. An award of $15,000 is appropriate.
3. The parties to be heard as to the amounts for which judgment should be entered.
Held per Kourakis CJ (Kelly and Parker JJ agreeing), dismissing the appeal in part:
4. It was open to the Judge to find that the plaintiff had not discharged the onus of proof she carried in respect of the six hours per week threshold under s 141B(3) of the MAC Act. No error of fact has been shown.
Motor Accidents Compensation Act 1999 (NSW) s 3, s 126, s 141B , referred to.
Woods v Collins [2018] SADC 62, discussed.
Geaghan v D'Aubert [2002] NSWCA 260; Sampco Pty Ltd v Wurth [2015] NSWCA 117; Hill v Forrester (2010) 79 NSWLR 470, considered.

WOODS v COLLINS
[2019] SASCFC 146
Full Court: Kourakis CJ, Kelly and Parker JJ

KOURAKIS CJ: This is an appeal against a judgment entered in the District Court on a claim for damages for personal injury arising out of a motor vehicle collision.
On 4 January 2012 the plaintiff, the appellant on the appeal, Mrs Woods, was driving a Mitsubishi four-wheel drive vehicle uphill on the Major Clews Trail, a dirt track in the Kosciusko region of New South Wales. Her husband, Mr Woods, was a passenger in her vehicle. The defendant, Mr Collins, was driving his Toyota Hilux down the track. The vehicles collided at a bend which swung to the right in Mrs Woods’ direction of travel. The Judge found that Mrs Woods’ Mitsubishi was entirely on her left-hand side, the correct side, of the road. At the time of the collision, Mr Collins’ vehicle was stationary, but straddled both the up and down tracks. Mr Collins testified that a one metre strip on the very left-hand side of the down track was washed away preventing him from holding close to that edge. He testified that he kept his Hilux just 20 centimetres to his right from the washaway. Even though it was put to Mr Collins that there was no washaway, Mrs Woods’ primary case at trial was that, even if there was a washaway, Mr Collins strayed further to the right than he claimed, and further than could be justified by the width of the washaway.
It was accepted at trial that Mrs Woods did not stop in time to avoid the collision because her foot either slipped off the brake, or was caught between the brake and the floor after she disengaged her foot from the accelerator. The Judge apportioned liability for the collision, 70 percent against Mrs Woods and 30 percent against Mr Collins. Mrs Woods contends on appeal that the apportionment should not have been any more adverse to her than 50 percent.
I would allow the appeal against the apportionment of responsibility for the collision. I accept that Mr Collins’ responsibility for the collision is much reduced because he had taken the precaution of driving slowly enough to bring his vehicle to a stop before colliding with an oncoming car and, in the event, did brake effectively. However, on the findings of the Judge, there was a much greater gap between his Hilux and the washaway than the 20 centimetres of which he testified. Indeed, the Judge found not only that Mrs Woods’ Mitsubishi was entirely within the up track, but that it was its front centre which collided with the left front of Mr Collins’ Hilux. Mr Collins was therefore straddling the mid‑line of the track, which, at that point, was comfortably wider than the width of both vehicles. Stopping in the path of oncoming vehicles on a bend, whether on an urban street or a rural dirt track, significantly increases the risk of a collision.
Mrs Woods, on the other hand, was required to anticipate that oncoming vehicles might veer onto her side of the road, because the track was narrow and because of features like the washaway, by driving slowly enough to avoid a collision and by braking effectively when the need arose. She met the former obligation but fell well short of the latter. It is a critically important aspect of a motorist’s duty that he or she be able to effectively brake in order to avoid a collision. Each discrete mental decision and physical movement which resulted in Mrs Woods’ foot being under the brake, instead of on it, might not have been particularly blameworthy but in combination they resulted in the failure to brake which was a cause of the collision.
I cannot differentiate the respective culpability of Mrs Woods and Mr Collins. I would apportion responsibility for the collision equally between them.
Mrs Woods also appeals against the Judge’s failure to make an award of damages for past and future economic loss. Mrs Woods was, at the time of the accident, 61 years of age. She was a nurse working in community health. She continued to work until the end of 2015 but took substantial amounts of time off work on sick pay. She had not taken any such time off in the last 12 months of her employment. She gave evidence that she retired both because of the discomfort caused by the lower back injury which she sustained in the accident and for lifestyle reasons; she wished to join her husband, who had already retired, on holidays around Australia and overseas. However, in her retirement she found some part‑time work as a nurse educator and as a nurse with the firm Apotex administering immunisations in pharmacies. Her lower back disability was likely to interfere with that employment. I would find that the Judge erred in failing to award any damages for future economic loss. I would award the sum of $15,000.00 on the basis that as Mrs Woods ages she is less likely to undertake work she would have otherwise undertaken because of her back pain.
Mrs Woods also appeals against the Judge’s decision not to award any damages for future voluntary services. I would dismiss that ground of appeal. The testimony of Mrs Woods and Mr Woods was an insufficient basis to find that Mr Woods was likely to provide more than six hours per week in voluntary services that were needed by Mrs Woods because of her medical condition. I accept that on occasion there might be a week in which that was necessary, but that is largely speculative.
I elaborate on my reasons below.
Liability – the evidence
Mrs Woods testified that as she drove up the track it swung significantly to her right. As she approached the curve, she caught sight of a car, a bit of ‘colour’ coming down the track through the trees to her right-hand side. She was travelling about 25 to 30 kilometres per hour. She attempted to brake but her foot slipped and ended up beneath the pedals. It did not hit either the clutch or the accelerator as it slipped to the floor. Mrs Woods said that her foot then became trapped beneath the pedals. She glanced down at her feet for a moment as she was trying to pull her foot out and when she lifted her eyes she saw that the collision with Mr Collins’ vehicle was imminent.
Mr Collins’ vehicle had stopped at the apex of the corner. It was positioned straight ahead of her car but to her left. Mrs Woods testified that it was difficult for her to move around to the left of Mr Collins’ car because of trees on the side of the road. Her vehicle continued to move slowly forward while she was attempting to extricate her foot. Indeed, Mrs Woods accepted that if she had put her foot on the clutch, instead of attempting to brake, the incline of the track itself would have brought her vehicle to a standstill before colliding with Mr Collins’ Hilux. Mrs Woods testified that she and her husband revisited the accident site about four years later. They measured the width of the track at the point of collision to be 7.5 metres. She testified that it was wide enough for two vehicles to pass safely. Mrs Woods, as did Mr Collins, agreed that the width of their cars was about 1.8 metres.
Mrs Woods testified that the defendant’s left-hand side bull bar collided with the front of her car.
Mr Collins testified that there was rain on the previous day and that it had washed out the left-hand side of the road on the down track. He said that he was travelling at 25 to 30 kilometres per hour. Mr Collins testified that he braked as he drove around the bend to his left. He kept to the left as far as practicable. He testified that there was a rut caused by a washaway about one metre out from the embankment, and claimed that he drove approximately 20 centimetres from the rut towards the centre of the road. He testified that he slowed to about 10 to 15 kilometres per hour as he turned into the corner and braked as soon as he saw Mrs Woods’ vehicle. Mr Collins claimed that her vehicle was travelling well up the centre of the track, directly towards him. Mr Collins testified that he thought there was enough room for Mrs Woods’ vehicle to pass to his right. He described their vehicles as ‘sharing the same track’, that is to say that Mrs Woods was following the curve of the road at about the same distance from the washout as he was. Indeed, he claimed that on alighting from the vehicle Mrs Woods would have stepped into the rut.
In the claim which Mr Collins submitted to his insurance company for the damage to his car, he showed his car on the very left-hand side of the down track and did not indicate a rut or washaway. The diagram he drew for the purposes of the claim showed Mrs Woods’ car on the wrong side of the road directly in front of his.
I observe here that the head-on collision shown in that diagram, and Mr Collins’ testimony that the vehicles were sharing the same track, when adjusted for the Judge’s finding that, in fact, Mrs Woods had remained on the up track, illustrates how far over on to the down track Mr Collins had allowed the Hilux to travel.
Mr Collins denied that he had failed to follow the curve of the track to his left and had veered to the outside of the corner. He testified that Mrs Woods could have avoided the collision by driving past him.
Liability – the Judge’s reasons
The Judge preferred the evidence of Mrs Woods and Mr Woods to that of Mr Collins. The Judge rejected Mr Collins’ evidence that his and Mrs Woods’ vehicles were both on the down track side of the road immediately before the collision. The Judge stated that:[1]
[126]… I prefer the evidence of the plaintiff and Mr Woods to that of the defendant. The defendant’s conclusion that the plaintiff would have to have had her right wheel on or in the washout cannot be correct, and consequently, nor can his description of the angle of travel. The plaintiff’s evidence was consistent with the various reports made to insurers close to the time the collision occurred. Mr Woods said he was not uncomfortable with his wife’s driving up until immediately before impact, which is, I accept, not likely to have been so if she had been driving close to the inside corner. The only report made by the defendant was some six months after the event and any other description he gave has not been made available. Photographs that the defendant said were taken on the relevant day and which he said were provided to his insurers, were not produced. In making these comments, I do not imply that the defendant was not doing his best to recollect the events honestly. He was in my view doing his best to recall the events with accuracy. However, to have driven in the wash away, which the defendant assessed as an impediment to keeping close to the inside curve, makes a finding that the plaintiff was driving in that area on the track unlikely. The damage to both vehicles must necessarily put the placement of the defendant’s vehicle wider on the track than he was prepared to accept. I find that it is more likely that the defendant drove his vehicle wide of the inner curve.
[1] Woods v Collins [2018] SADC 62 at [126].
The Judge recorded Mr Collins’ concession that a white mark on the left‑hand side of his Hilux’s bumper bar may have been caused by the collision, and his denial that that was the point of impact. The Judge rejected that evidence and found that the points of impact of the two vehicles were the front left side of Mr Collins’ Hilux and the front centre of Mrs Woods’ Mitsubishi:[2]
[125]… It is clear from the photographs that there was impact to the defendant’s vehicle on the front left, as indicated by the white marks in that area of his vehicle. The minor damage to the right side of the defendant’s vehicle is consistent with impact to the left causing some displacement to the right of the vehicle and possibly tearing to the bumper overrider. In addition, Mr Pennant’s evidence as regards collision damage observed to the left front of the defendant’s vehicle adds support to my finding that the front centre of the plaintiff’s vehicle impacted the left front of the defendant’s vehicle.
[2] Woods v Collins [2018] SADC 62 at [125].
The Judge’s reasons for apportioning liability in the ratio of 70:30 against Mrs Woods were: [3]
[129]I accept that the primary measure to avoid a collision in the circumstances was to stop. Bringing his vehicle to a stop was, perhaps, the most obvious course for the defendant to adopt. I have found the defendant had positioned his vehicle more to the right as it came around the corner. He failed to leave himself room to manoeuvre his vehicle, such as to leave sufficient room for an approaching vehicle, thereby relying on the ability of that vehicle to stop. It was submitted on the plaintiff’s behalf, that the defendant’s conduct amounts to an error of failure to drive defensively and failure to take alternative action. He was the downhill driver on a blind corner. On his case, he slowed, but it is evident that he did not leave himself room to manoeuvre or to avoid an upcoming vehicle. He failed to anticipate and leave sufficient room for such a vehicle. When that risk manifested, he simply stopped in the path of the oncoming vehicle. He did not steer to his left, or attempt to reverse. He therefore made the occurrence of a collision dependent entirely upon the ability of the other driver to avoid it. When the plaintiff failed to brake, the defendant’s action in stopping, and his subsequent inaction or inability to act, converted the risk of a collision into a certainty.
…
[131]Counsel for the plaintiff argues that while it may seem a counsel of perfection to analyse the conduct of both drivers, this was not a routine suburban driving incident. Both drivers knew they were engaged in a form of leisure activity which took them outside the conventions of routine driving. Each knew they were on a narrow track where two vehicles could not always easily pass and, in the event they met with an oncoming vehicle, it might be necessary to back up, pull off the track or otherwise negotiate what, in ordinary traffic, might be an unexceptional passing, requiring no particular forethought. Leaving aside attempts to assign blame as if one or other driver had failed to keep left on a suburban road, both drivers failed to drive to the conditions and in anticipation of a scenario which, on the evidence of the defendant, was entirely foreseeable.
[132]I find that the plaintiff, in failing to brake, must bear the greater responsibility for the collision, but that in stopping where he did, the defendant has contributed to the collision occurring. The defendant’s actions in driving in the path of the plaintiff’s vehicle and stopping in her path were ‘necessary conditions’ of the occurrence of the plaintiff’s injuries. Taking into account all the circumstances of the case, in my view, the conduct of the plaintiff in failing to stop was far more significant than that of the defendant and her damages should be reduced by 70 percent on account of her contributory negligence.
[3] Woods v Collins [2018] SADC 62 at [129], [131]-[132].
Discussion
The finding that Mr Collins drove ‘wide of the inner curve’ is an understatement.[4] It follows from the Judge’s finding about the points of impact on the respective vehicles and from the finding that Mrs Woods was travelling on the correct side of the road, that Mr Collins’ vehicle occupied much of the up track side of the road.
[4] Woods v Collins [2018] SADC 62 at [126].
Proceeding on Mrs Woods’ primary position at trial, that there was a washaway, Mr Collins’ duty was to either drive close enough to it to allow a vehicle on the up track to pass by safely, or to drive in a manner which allowed him to move back into that position as soon as it was necessary to do so. Driving slowly enough to bring his vehicle to a standstill in the hope that an oncoming vehicle would stop, or slow sufficiently for the vehicles to manoeuvre around each other, left too much to chance. That is particularly so when the bend obstructed the view of vehicles coming down the track.
The risk inherent in Mr Collins’ strategy is apparent from the cross‑examination of Mrs Woods in which it was put to her that there was sufficient room to pass Mr Collins’ vehicle on either her right or his left. Mrs Woods appeared to agree that that was possible, or at least did not deny it. However, the possibility that Mrs Woods might have taken evasive action by veering to the right tells more against Mr Collins’ culpability than hers. If it was possible for Mrs Woods to veer on to the down track side of the road to avoid colliding with Mr Collins’ car, it must have been even more practicable, and prudent, for Mr Collins to remain fully on the down track in the first place.
On the commonly accepted facts, the track was 7.5 metres in width and that each vehicle was 1.8 metres wide; it follows that if Mr Collins had stayed as close as was reasonably practicable to the washaway, there would have still been at least five metres of track available for both vehicles to pass. Mr Collins’ evidence that his Hilux was just 20 centimetres away from the washaway, albeit mistaken, shows that he at least perceived no reason, in the condition of the track, for not holding that closely to the correct side of the track. It also follows that Mrs Woods only felt compelled to brake because Mr Collins’ car stood squarely and unexpectedly in her way. Had his car been where he erroneously claimed it was, Mrs Woods need only have maintained her position on the up track.

Mrs Woods’ duty was, of course, to drive to the left on the up track, but also to maintain a proper look out for vehicles coming down the track lest the narrowness of the track require some form of evasive action or for her to stop. It was also her duty to effectively execute a braking manoeuvre if necessary.
I accept that on a mountain track like the one on which Mrs Woods and Mr Collins were travelling, ensuring a capacity to effectively brake is a first‑order requirement. On the other hand, Mr Collins took the corner much more widely than was reasonably necessary and in so doing placed himself in the path of vehicles on the up track. That was likely to create a dangerous situation. He must bear a heavy responsibility for the accident. Indeed, I would have been inclined to apportion responsibility in a greater proportion against him but for the evidence that he had stopped his vehicle with more than enough time to avoid the collision and that on Mrs Woods’ own evidence no braking at all would have been required if she had simply engaged the clutch. That shows that there was a significant period of time after Mr Collins’ vehicle had come to a standstill, in which Mrs Woods could have taken steps and had time to take steps to avoid the collision. I would therefore apportion responsibility for the collision equally between them.
Damages – domestic assistance
The Judge did not include in the damages she awarded a component for attendant care services provided to Mrs Woods by her husband beyond 24 February 2013. The assessment of damages in this case was regulated by the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act).
Section 3 of the MAC Act defines ‘attendant care services’ as follows:
attendant care services means services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.
An entitlement to compensation for attendant care services is set out in s 141B of the MAC Act as follows:
141B Maximum amount of damages for provision of certain attendant care services
(1)Compensation, included in an award of damages, for the value of attendant care services:
(a)     which have been or are to be provided by another person to the person in whose favour the award is made, and
(b)     for which the person in whose favour the award is made has not paid and is not liable to pay,
must not exceed the amount determined in accordance with this section.
(2)No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident.
(3)Further, no compensation is to be awarded unless the services are provided (or to be provided):
(a)     for at least 6 hours per week, and
(b)     for a period of at least 6 consecutive months.
A table of the attendant care services provided to Mrs Woods, prepared from information given by Mr Woods, was received into evidence.
The Judge summarised the table as follows:[5]
[5]    Woods v Collins [2018] SADC 62 at [155].
[155]In his schedule, Mr Woods characterised the care he provided to the plaintiff from 25 February 2013 through to 6 October 2013, as ‘Level 4 – Independent, but some support required for sustained efforts,’ with a calculated time each week during this period of 6.5 hours. These hours were made up as follows:
Preparation of meals, clean up  .5 hour/day
House cleaning, vacuuming, mopping bathroom             1 hour/week
Shopping, food, chemist  1 hour/week
Gardening and pet care  1 hour/week
Total  6.5 hours/week
The Judge explained the dispute over Mrs Woods’ claim for attendant care services as follows:[6]
[153]Mr Woods’ schedule assigns hours and levels of service provided during specific periods from January 2012 through to 13 October 2013. Thereafter he assigns four hours per week to his wife’s care. In the formulation of her claim, the plaintiff submitted she is entitled to compensation for services since 6 October 2013, on the basis of every second week. The defendant accepts that the plaintiff initially required attendant care services but says that the plaintiff cannot meet the threshold of six hours per week for any time past 25 February 2013. Furthermore, the evidence of Mr Woods that he has provided services at the rate of four hours per week since October 2013 provides no evidentiary basis for finding that the threshold is met every second week.
[6] Woods v Collins [2018] SADC 62 at [153].
Mr Woods gave evidence that he would spend about 30 minutes each week caring for their two dogs, over and above the time spent before Mrs Woods’ injury. The Judge correctly excluded the time in accordance with the decision in Geaghan v D’Aubert.[7]
[7] [2002] NSWCA 260 at [55]-[66].
He conceded that after the collision ‘it’s probably better to say our shopping is a shared responsibility’.
Mrs Wood, without much particularisation, stated that her husband devoted more time to her care:
Q.I believe that's a table that's been prepared by your husband, Martin.
A.That's correct.
Q.Have you seen that table before.
A.Have I seen it before?
Q.Yes.
A.Yes.
Q.And that table is Martin's summary of the assistance and types of assistance he gave in certain periods. In general terms, do you agree that that's the assistance he was giving you.
A.Yes, I agree with that.
Q.And if we looked at the assistance that he now gives, can you just briefly run through what assistance he is giving to you now.
A.Well, again it's many things, that I've said, but in the household area there's the assistance with the cleaning, mopping, washing, hanging out clothes, or helping me do that - we share some of those things. The shopping we will usually do together unless I'm working perhaps, but if we're doing it together then he would help with the carrying stuff. We have a slow combustion heater at home, he brings in all the wood -
…
Q.Anything else, anything in particular you can think of.
A.My mind's gone a bit blank at the moment, sorry.
Q.We can come back to it. Overall are you able to estimate about how much help a day or a week Martin is giving you at present.
A.I reckon he would be giving me one to two hours a day, probably.
Q.And have you got any reason to think that your need for that help will change.
A.Any?
Q.Any reason to think that you may need more or less help in the future.
A.Well, I guess if my back - if the disc prolapsed again yes, probably would. I hope it doesn't happen but hopefully it will remain about the same.
The Judge concluded:[8]
[161]Although neither medical examiner has addressed the issue of the need for assistance in daily activity in detail, nor it seems been asked to comment on the hours of assistance the plaintiff claims, in his report dated 17 July 2013, Mr Carney found that the plaintiff was able to perform all activities of daily living, but was cautious and modified activities if her back was sore. While I note that the hours Mr Woods has attributed to assistance with the everyday care of his wife is, he says, over and above the time that he would ordinarily have spent assisting his wife if not for her injury, I am not satisfied that the plaintiff has established the requisite six hours of assistance per week for any period beyond 24 February 2013.
[8] Woods v Collins [2018] SADC 62 at [161].
Mrs Woods accepts that s 141B(3) of the MAC Act establishes a continuing threshold of six hours per week.[9] It has also been established that the hours cannot be averaged from week to week:[10]
[159]In SampCo Pty Ltd,[11] Basten JA, with whom Meaghan JA and Adamson J agreed, found that the trial judge in the matter, having dealt with the claim for attendant care services by averaging the assistance required from the day following the accident through to the date of the trial, was in error. The assessment is to be made on a weekly basis and not an average over many weeks. In my view, the plaintiff’s claim, based as it is on hours of service over a two week period, cannot meet the requirements of s 141B.
(Footnote in original)
[9] Hill v Forrester (2010) 79 NSWLR 470.
[10] Woods v Collins [2018] SADC 62 at [159].
[11] [2015] NSWCA 117 at [91].
However, counsel submits that the evidence established that threshold.
I reject that submission. It was open to the Judge to find that Mrs Woods had not discharged the onus of proof she carried in this respect. The household work provided by Mr Woods, meal preparation, house cleaning, shopping and gardening, would have been provided because Mr Woods was fully retired and Mrs Woods still engaged in casual or contract work. Some of that work would also be characterised as a change of responsibility for providing for their joint needs. It is improbable therefore that there would be any week in which more than six hours of services would be provided. Mrs Woods’ testimony that Mr Woods assisted her for an hour or two a day was general and unparticularised. It did not allow for an identification of those services which were compensable from those which were not. No error of fact has been shown.
Damages – future earning capacity
The Judge declined to include an award for future economic loss. The Judge’s reasons were:[12]
[145]The plaintiff submitted that damages for future loss of earning capacity should be assessed in the amount of $25,000 including a component for loss of superannuation benefits, based on the plaintiff working an extra day per week. In the alternative, the plaintiff submitted that such damages should be in the buffer amount of $40,000 for both past and future losses.
[146]The defendant says that there can be no award made for future economic loss unless the plaintiff satisfies the court that the assumptions on which the award is based, is in accordance with the plaintiff’s most likely future circumstances, but for the injury. That is, any award must be in accordance with the requirements of s 126 of the Act, which provides:
…
[147]There is no evidence before me to establish that the plaintiff would have worked an extra day each week but for the injuries she sustained. The plaintiff’s decisions to retire from SA Health and full-time work were in my view made because of lifestyle. As I have indicated above, I found the plaintiff to be an honest and straightforward witness. Her evidence on the issue of her retirement and reasons for her decisions were, in my view, utterly guileless. She was ultimately able to return to work full-time for almost two years after the collision and, it would seem from the medical reports before me, there is no medical basis for any decision to work less. She said she could now work full-time and had told Mr Carney she had not retired because of her spinal injury but because she felt it was time to do so. In Mr Eriksen’s opinion, as at 28 July 2014, the plaintiff was able to continue in her current employment and would be able to do so in the foreseeable future.
[148]That the plaintiff is perhaps not working as many hours as she may like, relates to her lifestyle choices and, in particular, her desire to work in blocks of time, rather than extra days per week, so as to allow for greater flexibility. The plaintiff has in my assessment not established that there would be any difference in her working capacity but for the injuries she sustained.
(Footnote omitted)
[12] Woods v Collins [2018] SADC 62 at [145]-[148].
Section 126 of the MAC Act provides:
126 Future economic loss—claimant’s prospects and adjustments
(1)A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2)When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3)If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
Mrs Woods described her previous employment as follows:
A.Well, a nurse practitioner is the very high level of clinical nursing. It requires a significant amount of expertise and training and experience to get to that level. It's providing advanced health assessments to - nurse practitioners work within a specified clinical area. They're all different specialities. Mine was primary health, youth health and sexual health.
…
A.Okay. Well, being a community health nurse since 1977 has involved getting out into the community, so I've always had driving as part of my role. In the last several years, in particular, I guess, being the senior nurse - well, actually the last 10 years, being the senior nurse involved travelling across all of the - to all of the sites which were ranging from Christies Beach to Elizabeth and central as well as to other - the Adelaide Youth Training Centre, for example, and other community sites as needed.
In examination-in-chief Mrs Woods explained that she retired in 2015 for several reasons, and had already made arrangements to engage in ‘seasonal work’:
A.I retired at that time for several reasons, one was the continual discomfort of working full-time, knowing that I - I could have dropped back to part-time, but if I did that I wouldn't be able to cope financially because we still had mortgages. So I needed to - through our financial adviser it was suggested that I retire so that we could access my full superannuation and be able to pay off the mortgages. The other reason was that we wanted to do some travelling in Australia, or travelling in general, but in this instance in Australia, and that was going to be more possible if we had a big chunk of time off. However, before I already left I was already engaged with Apotex, the company I do other work for. I'd already done a clinic in Broken Hill just before I retired and then I went on to do work for them for two months in April and May doing flu vaccine clinics out of pharmacies where they needed somebody to assess the client, prescribe the vaccine, administer the vaccine and then do the follow-up but all based in a community setting, in a pharmacy; so they need nurse practitioners to do that role, and I did it across South Australia and into Melbourne, Sydney and ten days in Canberra.
Q.So, although you retired from SA Health in 2015 and you say you had already arranged further work with Apotex, was it intention when you retired to continue to work.
A.Yes, I was hoping that maybe there would be some seasonal work available for me when other people who were on leave that maybe I could come in and do short bursts, two, three, four weeks, something like that. That didn't eventuate. And then I started looking around a bit broader than that towards the end of last year, I guess, and that's when I came across the position in Tasmania. That would have been about October I would think.
In cross-examination Mrs Woods maintained that her back pain was one of the reasons for her retirement:
Q.When you retired in 2015 you retired not because of your injuries but because you felt it was time.
A.There were a number of factors, both of those were true factors.
Q.So I understand, you are saying it was a true factor you didn't retire because of your injuries and you retired because it was time.
A.There were more factors than those two into why I chose to retire when I did.
Q.Did that include your wishing to travel.
A.Yes.
…
Q.Thank you. And one of the reasons you decided to retire was because you wanted to travel some more with your husband.
A.Yes, part of that is because he is older than me and he like many people as they get older I guess wanted to travel while he still could.
Mrs Woods testified that she worked for Apotex in April and May 2016 as a casual employee. She stopped working at the end of the flu season, even though there may have been other work available, in order to resume travelling with her husband and friends. After travelling, she returned to Adelaide in about September 2016.
Mrs Woods testified that she continued to suffer from back pain:
A.These days I guess things that can cause pain would be doing things like mopping floors, where you're having to hold your body in a certain way so you can swing a mop around. We do have a lot of polished floors at home. With washing, you know, lifting out heavy wet towels out of the washing machine and get out to the line, that sort of thing where it's heavy. The shopping, moving things in and out of the house, in and out of the shop, in and out of the car, into the house etc., those sorts of things.
Mrs Woods gained work with the Tasmanian Health Service, working 38 hours per fortnight, as a clinical consultant between February and August 2017. However, that work aggravated her lower back:
A.Well, I went back to work recently, I've done some other jobs, just recently I took a job in Tasmania with the health department there and my orientation involves sitting in front of the computer for a couple of days and having to read documents etc., and I certainly found that within a fairly short space of time my back was hurting.
Even though Mrs Woods’ contract with the Tasmanian Health Service terminated in August, there were good prospects of further work:
A.Well, the actual contract goes through to August, but they knew when I took it on that I'm also doing work for another company, Apotex, and that starts in another month. So, they were very prepared to give me leave without pay, whatever I needed, to keep going.
Q.And have you had the prospect of future work from the Tasmanian Health Service.
A.Yes; they have another position later in the year that's the same level, that's based in Hobart. This one's based in Launceston, and it is eight weeks, again a back-fill position for somebody on leave.
Q.Is that also half-time.
A.No, that's a full-time position.
Mrs Woods was asked about the effect of her part‑time work in Tasmania on her injuries. She responded:
A.I guess it highlighted to me, as I said before, when I first started there having to sit and do the computing work and my back getting sore I was thinking I don't think I can actually take on that role full-time, but I have suggested to them that I'd take it on part-time and maybe they use the other moneys associated with that for me to train somebody else to support their vacancies in the future.
Q.Has the question of that further employment been resolved yet.
A.Has it been resolved?
Q.Are they to employ you or -
A.I think it's highly likely, but I haven't got any contract yet.
In examination-in-chief Mrs Woods gave evidence that she was concerned that her back pain precluded her from full-time work:
Q.You mentioned your concerns about doing full-time work in Tasmania.
A.Mm.
Q.Do you have similar concerns about doing full-time work elsewhere.
A.Yeah.
Q.Just going back to the Tasmanian work, you've said it brought on some symptoms. During the time you've been doing the Tasmanian work have your symptoms been more or less at the same level as they were before that, or more or less.
A.Well, once I started, as I said, it got sore for those first few days, that was particularly because I was sitting down, as I said. Since then I've done more clinical contact with clients and that pain is not as significant then; however, it is still there. I'm nearly always just rubbing my back. It's almost absent minded almost.
Q.Overall would you say that when you're working your symptoms are similar to when you're not working, or more, or less.
A.Probably more.

In cross-examination Mrs Woods testified that she was confident she could continue to find work, even after she turns 70, but expressed doubt that ‘[her] body would let [her] do that easily’. The following was said:
Q.Should you so choose, lifestyle reasons aside, you could work full-time now if you wanted to.
A.As far as work goes, I could. I don't know that my body would let me do that easily, but yeah, I am sure there would be work around for me to do.
Q.How long do you intend to continue working for.
A.I don't have a set time for that, but I would hope at least a few more years. I'm 66 now. I suppose I would not see myself working past 70 at this stage, but if I'm feeling fit and fine at 70, I wouldn't stop just because of my age.
Q.Has your experience so far been that you've been able to generally find work to suit your lifestyle.
A.To suit my lifestyle?
Q.To suit your lifestyle so you have been able to get part-time jobs when you want.
A.You mean since retirement?
Q.Yes, since retirement, yes.
A.Yes, I suppose, so.
Q.Given the occupation that you're in and I understand it's quite a specialised area, do you anticipate that's going to be the case moving forward.
A.I missed the last bit, specialised area, yes?
Q.It's a specialised area.
A.Yes.
Q.Do you anticipate that there will still be a demand for the type of labour that you provide going forward.
A.Sorry, that's amusing. Yes, definitely.
Mrs Woods explained, in response to a question from the Judge, that she would like to do more work, but not ‘work full-time’. The cross-examination continued:
XXN
Q.To what extent would you like to do more work.
A.To what extent?
Q.How much more work would you like to do.
A.I'd probably like to do when I'm - when we are not travelling, which is most of the year, we're not travelling, but maybe a day or two a week, but not every week necessarily either. I'd rather have it in blocks with gaps in between, so I wouldn't be applying for a position that is a two day a week position going on.
Q.And you wouldn't be applying for a full-time job.
A.I would not, no.
It is clear from that evidence that Mrs Woods’ back pain was a limiting factor in fully exercising her residual work capacity and, given the employment available to her, productive of economic loss.
Medical reports from Dr Carney and Dr Eriksen accepted some permanent level of disability. Their opinions did not contradict Mrs and Mr Woods’ testimony which was accepted by the Judge.
The Judge was wrong not to make an award to compensate Mrs Woods for the real prospect that her ongoing disability would cause her to take a contract for less average weekly hours than she would otherwise have worked, or to decline to take a contract at all which she would otherwise have taken. Mrs Woods’ position of semi‑retirement and her desire to travel did not preclude that award. To the contrary, the prospect of increased pain and disability was likely to influence her decisions as to whether to work or travel in a way which would reduce her earnings. Mrs Woods’ testimony proved that, but for the injury, her most likely future circumstances were that she would have worked for more hours, in more positions than she was able to work because of her injury. On the other hand, the prospect that, but for the injury, she may have obtained employment which may have yielded an entitlement to sick pay is too speculative, given the other reasons for her retirement, to attract any award. The loss of the security provided by accumulated sick pay is incapable of separate assessment and best encompassed in a general award for future economic loss.
After allowing for all relevant contingencies, an award of $15,000.00 is appropriate.
Conclusion
I would allow the appeal. I would set aside the finding on liability and apportion responsibility for the collision equally. I would increase the award of damages by $15,000.00.
I would hear the parties on the amount for which judgment should be entered.
KELLY J: I agree with the Chief Justice.
PARKER J: I agree with the orders proposed by the Chief Justice.